Why the BP oil gusher must reopened – Open it, measure oil flow, close it

Congratulations to BP for finally finding a temporary solution to the monster gusher they created. It’s bittersweet to extend congratulations to the US’ largest polluter.

It has been 83 days since the gusher exploded into the gulf and to this very day, BP’s highly effective PR and manipulation of the truth has left the government with a huge problem — The federal government still does not know the amount of oil and methane that gushed out of the BP oil well.

The government not knowing the amount of oil gushing WITH DOCUMENTED CERTAINTY leaves the questions of civil fines and liabilities in limbo. The knowledge vacuum guarantees protracted litigation.

As it stands today, the Associated Press quoted an unnamed administration official as saying that the new cap was seeping and that “possible methane” had been detected near the broken well. BP is concerned that opening the cap would result in another three days of oil flowing into the Gulf, while the government thinks a return to pumping oil could be necessary to ease pressure on the fragile well, the reports said. Frankly I think BP is more concerned about documenting the oil gusher’s flow.

However, Allen’s statement Sunday allowed the possibility of keeping the current cap in place, saying “it is important that all decisions are driven by the science,” according to Reuters.

The current top cap 3-ram BOP on top of the damaged BOP.

A previous guest post by lawyer Brian Donovan notes:

Given BP’s documented violation of federal safety regulations aboard the Deepwater Horizon, e.g., using an improper cementing technique to seal the well, failing to adequately test and maintain blowout prevention equipment and drilling deeper than BP’s federal permit allowed, there will be no limitation on BP’s liability. (Oil Pollution Act of 1990, 33 U.S.C. 2704).

BP may be liable to the United States and to Louisiana for damages resulting from lost royalties. Pursuant to Section 2702 of OPA 90, “Notwithstanding any other provision or rule of law, and subject to the provisions of this Act, each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified in subsection (b) of this section that result from such incident…”, including revenue losses such as “taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by the Government of the United States, a State, or a political subdivision thereof.” (Oil Pollution Act of 1990, 33 U.S.C. 2702(b)(2)(D)).

Pursuant to Section 1321 of the CWA, “Any person who is the owner, operator, or person in charge of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation of paragraph (3), shall be subject to a civil penalty in an amount up to $25,000 per day of violation or an amount up to $1,000 per barrel of oil or unit of reportable quantity of hazardous substances discharged. In any case in which a violation of paragraph (3) was the result of gross negligence or willful misconduct of a person described in subparagraph (A), the person shall be subject to a civil penalty of not less than $100,000, and not more than $3,000 per barrel of oil or unit of reportable quantity of hazardous substance discharged.” (Clean Water Act, 33 U.S.C. 1321).

Under the CWA, the basic fine is $1,100 per barrel spilled. But the penalty can rise to $4,300 a barrel if a federal court rules the spill resulted from gross negligence. As noted above, the fines were originally set at $1,000 to $3,000 but that was raised in 2004 to keep up with inflation. Accordingly, the number of barrels of oil being released from the well is going to be critical.

If the government pursues civil fines based on the volume of oil spilled, it would take into consideration whether BP has made its best effort to mitigate the spill, its prior history of offenses, if any, and whether BP can bear the cost of fines, among other factors. Interestedly, BP received the third-largest criminal penalty, of $50 million, for an environmental offense in U.S. history for a Texas City refinery fire in 2005. BP subsidiaries remain under federal probation for prior offenses in Texas and Alaska.

Under the CWA alone, gross negligence penalties based upon a discharge rate of 30,000 barrels per day would total $129 million per day. BP’s net profits in the first quarter of 2010 were approximately $6.7 million per day.

It is obvious why BP, despite having the ability to obtain a very accurate flow rate through ultrasound, does not want a more accurate measurement. It is also very obvious why BP does not want to collect a great deal of the oil spill. Since April 22, 2010, BP admits that it has been able to recover only approximately 475,000 barrels of “oily liquid.” This equates to collecting a total of only 47,000 to 71,000 barrels of oil.

If the government fails to open the well, scientifically and empirically measure the oil gusher, the question of oil that gushed into the gulf is going to be litigated into oblivion. It will be he said, he guessed versus his guess, he said.

The only solution is to connect the positioned collection tankers to riser collection pipes to the new three-ram new “mini” BOP. They need to then open the oil flow — MEASURE OIL AND METHANE FLOW AND CLOSE IT FOREVER.

After measuring oil flow, BP can proceed with a permanent bottom kill. We can then move on to enforce the provisions of the Clean Water Act and the Oil Pollution Act.

Allowing BP to close the the oil gusher without measuring the flow of oil will be a surrender of the government’s responsibilities to BP. It would be the government’s utmost dereliction of duty.